IN COURT OF APPEALS
Susanne Griffin, City of Minneapolis Director of Elections,
Filed June 7, 2005
Hennepin County District Court
File No. MC 04-13463
Alan W. Weinblatt, Amy Gavel, Weinblatt & Gaylord PLC, Suite 300 Kellogg Square, 111 East Kellogg Boulevard, St. Paul, MN 55101 (for appellant)
Jay M. Heffern, Minneapolis City Attorney, Burt T. Osborne, Assistant Minneapolis City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent)
Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Wright, Judge.
Where a proposed charter amendment is in conflict with current state laws and would therefore be deemed preempted, a municipality is not obligated to place such an amendment on the ballot. Municipalities are not obligated to place proposed charter amendments on the ballot where the amendments are “manifestly unconstitutional,” the definition of which includes violative of existing public policy.
O P I N I O N
Haumant appeals from an order denying his request for an injunction requiring
respondent, the City of
The facts are not in dispute. On August 10, 2004, appellant and other members of an organization known as Citizens Organized for Harm Reduction (C.O.H.R.) filed a signed petition for a proposed charter amendment with the Minneapolis Charter Commission. The proposed charter amendment reads as follows:
Be it established by the people of Minneapolis that the Minneapolis City Charter be amended by adding the following as subsection (j) to Chapter 14, section 3: To require that the City Council shall authorize, license, and regulate a reasonable number of medical marijuana distribution centers in the City of Minneapolis as is necessary to provide services to patients who have been recommended medical marijuana by a medical or osteopathic doctor licensed to practice in the State of Minnesota to the extent permitted by State and Federal law.
Appellant’s petition, in accordance
with the appropriate procedure, was forwarded to the Minneapolis City Council (City
Council). And on August 20, 2004, the City
Council conducted a hearing on the petition.
After the hearing, the City Council ruled against inclusion of
appellant’s petition on the November 2, 2004
1. The proposed charter amendment is manifestly unconstitutional because it conflicts with federal law in violation of the supremacy clause of Article VI of the United States Constitution and is, therefore, preempted by federal law.
2. The proposed amendment contravenes state
public policy and is preempted by
3. The proposed amendment is an unauthorized, non-legal initiative that addresses specific operations of municipal government rather than a valid charter amendment that addresses the general form and structure of municipal government.
Appellant filed a petition for inclusion
on the ballot in Hennepin County District Court on September 3, 2004. After a hearing and briefing on the issues,
the district court denied appellant’s petition.
The court stated that it agreed “with Respondent that the proposed
charter amendment is manifestly unconstitutional” and held that the proposed
amendment was preempted by both federal and state law. Further, the district court found that “the
allegedly exculpatory clause contained at the end of the proposed charter
amendment cannot rescue the amendment from charges that it is manifestly
unconstitutional where it is clear that the proposed amendment seeks to
legislate in areas where the city is preempted.” Finally, the district court held that “the
proposed charter amendment is an initiative cloaked as a charter amendment”
and, because the City of
Was it proper for the Minneapolis City Council to refuse to place appellant’s proposed charter-amendment petition on the November 2 ballot?
We start with the basics.
Based on these two sentences, and
specifically relying on the use of the word “shall,” appellant argues that, where
the petitioners have met the technical requirements for amendment proposals, the
City Council has a mandatory duty to place all proposed charter amendments on
the ballot. Respondent points out that
this argument is subject to the doctrine of preemption, and by the fact that
proposed charter amendments in
1. State Law and Policy
Where there are no disputed facts on
appeal, the question of whether state statutes prevail over a local charter
provision is a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Comm’r of Revenue,
488 N.W.2d 254, 257 (
The question of whether state law
has preempted a field depends on the facts and circumstances of each case.
There are four factors that
Minnesota courts consider in determining whether preemption has occurred: (1) the subject matter regulated; (2) whether
the subject matter is so fully covered by state law that it has become solely a
matter of state concern; (3) whether any partial legislation on the subject matter
evinces an intent to treat the subject matter as being solely a state concern;
and (4) whether the nature of the subject matter is such that local regulation
will have an adverse effect on the general state population. Mangold, 274
Addressing the first two factors, we hold that the subject matter, the possession and distribution of marijuana, is one that is and has been historically covered by state and federal law. Minn. Stat. § 152.021 (2004), categorically prohibits the distribution and possession of marijuana without any exception for municipal regulation. As for the third factor, this court has stated, in the context of a criminal appeal, that:
v. Hanson, 468 N.W.2d 77, 78 (Minn. App. 1991), review denied (Minn.
June 3, 1991). Review of the current
version of Minn. Stat. § 152, indicates that
Accordingly, we conclude that the legislature, by virtue of Minn. Stat. §§ 152.021-.029 has indicated its intent to occupy the field of marijuana regulation and, thus, preempt municipal action. Forcing an election would be an exercise in futility and a waste of much-needed municipal dollars. See Nordmarken, 641 N.W.2d at 348 (holding that if preemption has occurred, a local law purporting to govern an aspect of the preempted field is void even if the law is not directly in conflict with the state law).
Appellant argues that his preemption problem is alleviated by inclusion of the phrase “to the extent permitted by State and Federal law” in the proposed amendment. He argues that, while the City Council could not presently pass an ordinance pursuant to the proposed charter amendment, “the City Council may wait until state law permits the distribution of marijuana for medicinal use and then act knowing it has the support of the citizenry.” Accepting appellant’s argument here would result in this court ordering the Minneapolis City Council to hold a special election on an amendment that would have no effect. Such a result is without support in the law. See Hous. & Redevelopment Auth. of Minneapolis v. City of Minneapolis, 293 Minn. 227, 234, 198 N.W.2d 531, 536 (1972) (finding that it was proper for the district court to enjoin an election “rather than permit the administration and the voters of the city of Minneapolis to experience the frustration and expense of setting up election machinery and going to the polls in a process which was ultimately destined to be futile”).
The Minnesota Supreme Court has
stated that “when a proposed charter amendment is manifestly unconstitutional,
the city council may refuse to place the proposal on the ballot.” Minneapolis Term Limits, 535 N.W.2d at
308 (citing Davies v. City of Minneapolis, 316 N.W.2d 498 (Minn. 1982));
see also State ex rel. Andrews v. Beach, 155 Minn. 33, 35, 191 N.W.
1012, 1013 (1923) (ordering that a proposed amendment be placed on the ballot
but stating, “[w]e do not hold that an amendment to a charter must be
submitted, even though it is manifestly unconstitutional”). Appellant asserts that, because the supreme
court chose the phrase “manifestly unconstitutional,” a proposed charter
amendment may only be kept off the ballot if it violates a specific provision
Appellant’s argument, which is based
on a dissenting opinion, relies on an overly strict reading of the limits that
have historically been imposed on charter amendment proposals by
It is clear that although courts
have often used the phrase “manifestly unconstitutional” in their analysis,
this phrase has never been interpreted as barring only those proposed
amendments that are proved to be unconstitutional beyond a reasonable doubt. Appellant’s attempt to add an additional
element to the term “manifestly” is not persuasive. As the City of
2. Federal Law
In addition to finding the proposed
amendment violative of
Appellant relies on the Ninth Circuit’s decision in Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 124 S. Ct. 2909 (U.S. June 28, 2004), for his assertion that “it is likely that the federal Controlled Substances Act may be found to be unconstitutional as applied in medical marijuana states.” See Raich, 352 F.3d at 1229 (distinguishing “the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes” from drug trafficking, and finding that “[a]s applied to the limited class of activities presented by this case, the CSA does not regulate commerce or any sort of economic enterprise”). This assertion has some validity, but until the U.S. Supreme Court decides the issue, the federal CSA makes possession of marijuana for any purpose illegal.
In the event that appellant’s
proposed charter amendment directing the Minneapolis City Council to
“authorize, license, and regulate a reasonable number of medical marijuana
distribution centers in the City of Minneapolis” were to pass, it would be, at
least for now, in conflict with current federal law and would thus be “without
effect.” Cipollone v. Liggett Group,
Appellant again argues that because
the proposed amendment includes the phrase “to the extent permitted by State
and Federal law,” the amendment could never be preempted by, nor could it
contravene, any existing law and, therefore, must go to the voters. We disagree.
Cf. Davies, 316 N.W.2d at 504 (stating that “when a proposed
charter amendment appears to be manifestly unconstitutional, the City Council
must have the authority to avoid what would amount to a futile election and a
total waste of taxpayers’ money”) and citing Hous. & Redevelopment Auth.,
the phrase “to the extent permitted by State and Federal law” onto their amendment. That result would be absurd, and would gut the statutes and caselaw surrounding this issue. A parade of personal or “vanity” amendments would overtake the voting process if one “magic bullet” phrase trumped all concern for preemption, constitutionality, public policy, and common sense.
3. Initiative Versus Charter Amendment
Finally, while appellant failed to
directly address this issue, the district court’s finding that “the proposed charter
amendment is an initiative cloaked as a charter amendment” has merit. As respondent points out, the City of
makes some interesting legal arguments and has spent considerable resources in
furthering this cause, but we see appellant’s proposed charter amendment as an
attempt to circumvent
Appellant’s proposed charter
amendment would be deemed preempted by
 Our review of the minutes of the City Council indicates that the district court’s finding that the City Council rejected this ballot measure by a vote of 13-0 is erroneous.
 We note for the record that the United States Attorney’s letter, submitted by respondent in this matter, played no part in our analysis of the federal preemption issue. We are not bound in any fashion by the political gamesmanship in Congress over marijuana laws.